### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION



### FEDERAL AVIATION ADMINISTRATION, Complainant,
vs. AIRBORNE MAINTENANCE AND ENGINEERING SERVICES, Respondent. Docket No. FAA-2013-0291 FAA Case No. 2011S0290032
Judge Sullivan

REPLYIN SUPPORT OF MOTION TO COMPEL -**-~~**



### On l\1arch 14, 2014, The FAA filed a 

### motion to compel Respondent to comply with

,. ' i ' ' : 

### discovery requests. On March 25, 2014, Respondent filed a response in opposition to that motion. The FAA hereby replies in support ofits motion. In its Response, Respondent complains that the FAA's own discovery responses were late. Response at 1-2, 13-14. This is irrelevant as to whether Respondent's discovery responses
were deficient. It 

### is also false. The FAA's initial response to Respondent's discovery requests, which were attached to Respondent's Motion to Compel, were timely filed (indeed, they were filed before they were due). Respondent may have been displeased that this response was entirely objections to Respondent's untimely and otherwise improper discovery requests, but to say that the FAA had not responded in a timely fashion is simply incorrect. Respondent fnrther asserts that the FAA "w;J.ited until the last day" to file its objections. Response at 14 n.6. This is '
. ' - ' ' ' j _·**~** ' ' : ·'

- 1 : • 

### also false. Respondenn**di~cswery ~equests**  

### (attached 

## tp**R..~sponc!ent's**

### JY!otion to Compel) were**~-- ·--** **~~~** . i.,': '- T''·'·- j·.,l.\;'_';.**\_I;-}:·.:·.~.:>'·-~·** ;:**~:~** ., :·.,:_;'_**~;** 

### served and·received-onJ\ebruary-6, 20H. The.de.a.dfine to respond to those discovery requests

## 1

### 30 days later- would have been March 8, 2014, but because that was a Saturday, the deadline
was March 10, 2014, The FAA's initial discovery responses (also attached to Respondent's Motion to Compel) were filed before that date, Regardless, Respondent's obligation to answer discovery requests is in no way dependent on whether the FAA's initial discovery response was early or simply ontime, 1 

### In its Motion to Compel, the FAA requested that Respondent be compelled to respond to
a discovery request that asked Respondent to identify deficiencies in any inspector's statements contained in the EIR, In its Response, Respondent argues that it carmot respond to this question at all until it has been provided with an umedacted copy ofprivileged documents, Response at 2- 

### 4,2 

### This is not the case, As a factual matter, Respondent clearly can identify any errors it

1 Itis also innoway dependent onwhetherthe FAA's initial discovery requests were timely filed, which they were, Respondent now argues for the first time that the FAA's discovery responses were untimely, Response at 14, As an initial matter, as Respondent failed to make any objection as to the timeliness ofthe FAA's discovery requests, any such objection was waived and is notrelevant Regardless, Respondent's assertions inthis respect miss the mark, The deadline for initiating discovery in this matter was January 28, 2014, As the Judgemay be aware, and as was heavily covered onnational media, the Atlanta metro area was affected by a severe weather event on January 28, 2014, thatresulted in the metro areabeing shut down for several days, 

### See, e,g,, http://www,reuters,com/article/2014/01129/us-usa-weather-idUSBREAOQ!DK20140129, http://www,usatoday,com/story/weather/2014/01/29/snowstonn-travel-disruption-south/5010845/, http://en,wikipedia,org/wiki/Januarv 2014 Gulf Coast winter storm, The undersigned's office, which is located in the Atlantametro area, was closed at !PMon January 28, 2014, and did notre-open until Friday, January 31, 2014, The undersignedpersonally sentthe discovery requests viafacsimile andmade sure thatthe physical copies were placed in the mail systembefore leaving the building on January 28, 2014, The fact that the physical copies were unable to leave the building until January 31, 2014, when the building and mailroom re-opened, was more than good cause for any "lateness" in the FAA's discovery requests, Indeed, given that leaving the building by !PMon January 28, 2014 still resulted in attorneys from this office being stuck onfrozen roads for hours while attempting to get home, there wouldhavebeen ample cause for the undersignedto simply have left forhorne earlier andnotfiled the discovery requests at all until January 31, 2014, This situation is in no way comparable to Respondent's conscious choice to disregardthe deadline that it had agreedto, had submittedto the Judge, and that the Judge had thenplacedinto an Order, and any delay in the mailing ofthe physical copy ofthe FAA's discovery requests due to severe weather does not operate as any sort ofestoppel as to the FAA's objections to the untimeliness of Respondent's discovery requests.
2 Respondent additionally re-iterates its assertionthat the FAA should be requiredtoproduce privileged documents for review by the Judge, butfails to present any sufficient argument or evidence onthatpoint Response at 2-7, There is no basis inlaw for removing the attorney-client or deliberative process privileges based on nothing more than an allegation thatthe individualmaking the communication in question is biased, Respondent continues to assertthat it wishes to explorethebasis for the Inspector's "focns on the actions ofthe Respondent," but the FAA's 

### reasons for choosing to "focus" on aRespondent are aquestion ofprosecutorial discretion. See 

### Response at 3. The question before the Judge is only whether Respondent committedthe violations alleged, notwhy the FAA chose to exercise its discretion in investigating those violations and proposing a civil penalty, Respondent also asserts that 

### 2

### perceives in the portion of Section B that was provided, as well as the other statements by inspectors contained in the Items of Proof. Respondent is not e':ltitled to refuse to answer a discovery requests about statements by individuals because there exist other, privileged statements by those individuals to which it does not have access. Indeed, such a position would largely preclude any Respondent ever answering discovery requests about statements FAA Inspectors, given that the FAA Inspector will always have made statements to the FAA attorney that are privileged and are therefore not available to the Respondent (similarly, the FAA would
never have to answer discovery requests about statements by a Respondent, given that Respondent would surely have made privileged statements to its attorney that were not available to the FAA). Even if there existed other statements that were not privileged and to which

because the FAA is "working so hard" to oppose its motion, rather than simplyproducingthe privileged documents, see Response at 3-4, butthis argument is frivolous. The fact that a party to litigation asserts a privilege implies nothing aboutthe contents ofthe privileged communications. Whether the Inspector's written opinions as to Respondent's attitude were positive, neutral, or negative, the Inspector's communication ofthose opinions to the undersigned is privileged, and the precise nature ofthose opinions has no effect onwhetherthe FAA is willing to assert applicable privileges. Respondent further reiterates that the deliberative process privilege should be removed simply because it asserts bias. See Responseat 5. Contrary to Respondent's assertions, the case thatit cites (which involved a grandjmy seeking communications to the executive in a case where the alleged crime was thatthe communications containedfalse statements) does not holdthat. This case does notturn on whether an Inspectorhas apositive or negative opinion ofRespondent, and even ifthe Inspector's general opinions ofRespondent were relevant, Respondenthas demonstrated no reason why it wouldneed to review privileged documents to learn those opinions- the particularprivilegedwritten communications at question are completely unnecessary in this effort (even ifthis subjectwas within the scope ofdiscovery, it canbe adequately addressed without disclosing privileged information). Respondent criticizes the FAA's observation that, ifit is allowed to explorethe supposed "bias"to be found in the Inspector's alleged statements, the FAA will be required to produce evidence ofproblems with Respondent, arguing that this is some sort ofempty "threat" by the FAA. Onthe contrary, this is simply a factual observation. As the FAA noted, ifonetakes seriously Respondent's assertion that the Inspector's alleged negative statements about Respondent demonstrate bias (which they do not), then the marmer in whichtheFAA wouldhave to rebutthat allegation ofbias wouldbetopresent evidence for the actual basis for these alleged statements (to the extent one canpresent a basis for statements thatneverhappened). Andthis wouldrequire presenting evidence of other conductby Respondent and comments madeto the Inspector about the Respondent. Indeed, while arguing that 

### opening this Pandora's box would notresult in 

### the need to introduce otherwise irrelevant evidence, Respondent demonstrates the validity oftheFAA's contentionby attaching otherwise irrelevant evidence to its motion, in what appears to be a pre-emptive effortto rebut the FAA's comingrebuttal ofRespondent's "impeachment" ofthe Inspector. See Response at 7, Exhibit 

### 1. It is somewhatironic that Respondent attaches an e-mail from CCIA praising AMES for its work onN287SC, whenthis e-mail carne before the May2010 discovery ofthe deficiencies in AMES's work on that aircraft, and later letters from CCIA fmding AMES tohave improperly performedthe 

### maintenance in 

### question. Regardless, the Respondent's assertions thatthe Inspector behaved in an "intemperate" fashion, see Response at 11, continue to havenothing to do withbias (andfrequently havenothing to do with the Respondent), and are beyondthe scope ofdiscovery. 

## 3

### Respondent did not have access, that would not prevent Respondent from providing answer as to the statements it has especially where, as here, the Respondent admitted in its discovery response that it does have answers, but simply does not want to give them. In its Motionto Compel, the FAArequested that Respondent be compelled to a discovery request (Interrogatory 

### #12) concerning the physical condition ofcertain aircraft components, in particular their condition as ofMay 2010. In its Response, Respondent simply reiterates that the Complaint alleges improper maintenance in August 2009, October 2009, and March 2010. Response at 7-9. Respondent asserts that an interrogatory covering the time frame from August 2009 through May 2010 would be "sweeping" and that it would have "no basis" for responding, and would have objected. Response at 8. That Respondent "would have" objected is irrelevantit did not object. Further, any such objection would not have been well-taken. A 1 0-month time frame is hardly "sweeping," and Respondent also worked on each ofthese aircraft at least once between the reinstallation of the main landing gear and the FAA's discovery ofthe improper installation. Respondent could, and should, have addressed this interrogatory inthe same manner that anyone could address any interrogatory concerning the status of something over a time frame- by noting the points in time at which the party had knowledge ofthe status, and what the status was at that point intime. Further, while Respondent mocks the relevance ofthe physical condition ofthe aircraft in May 2010, 

## see Response at 8-9, it makes no serious argument that it is not within the scope of discovery. It is absolutely routine for maintenance violations to be founded on observations of the condition ofan aircraft at a time after the maintenance was completed.3 

### For example, in this
case multiple FAA inspectors observed missing components onthe mair, landing gear assemblies

3 Indeed, it is a rather rare case where an FAA inspector is present atthe time improper maintenance is being performed, andwhen it does occurthe inspector will generally point outthe improper maintenance rather than 

### permitting the mechanic to return the aircraftto service 

### in an unairworthy condition. 

### 4

### on the aircraft in question, as well as damage to aircraft components that was caused by the Improper reinstallation of the main landing gear doors. Respondent is free to dispute the accuracy of these observations and is free to attempt to present testimony disputing the conclusions about the cause ofthe damage, but Respondent is not free to refuse to respond to discovery requests on the subject. Respondent could,4 

### and should, have answered interrogatory #12 by including any alleged information it has on the physical condition ofthe components in May2010. In sum, Respondent has presented no senous arguments as to why it should not be required to comp!y with the FAA's discovery requests. Respondent's desire to see privileged communications do not absolve it of the responsibility to respond to discovery requests concerning statements in documents that the FAA has provided. And the physical condition of the aircraft in question in May 2010 was within the scope ofinterrogatory #12 and within the scope ofdiscovery. Respondent should be compelled to fully answer both ofthese requests.

# siRespectfully submitted thi;3,\ day ofMarch, 2014.
Attorney Office ofthe Regional Counsel

4 In the FAA's Motion to Compel, the FAA notedthat Respondent had contradicted itselfby stating with regards to Interrogatory #12 thatit had no knowledge ofthe condition ofthe aircraft in May 2010, and thenmaking assertions elsewhere about the condition ofthe aircraft in May 2010. 

### See Motion to Compel at 4-5. In its Response, the Respondent asserts thatit never saidthis. Response at 9. As cited inthe FAA's Motion to Compel, the Respondent's original response to Interrogatory#12 asserted that Respondent "cannotrespondto this interrogatory" exceptto say thatthe relevant components were airworthy atthe time Respondent installed the main landing gear. 

### See Motion to Compel, Attachment B, at 7**~** 12. 

### 5

### CERTIFICATE OF SERVICE I hereby certifythatthe foregoing FAA's Motion to Compel was sent: original and one copy via certified mail to: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2W1000
one copy viacertifiedmailto: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, SE (E11-310) Washington, DC 20590 facsimile: (202) 366-7536
one copy via certified mail to: Robert P. Silverberg, Esq. 1101 301 h 

### Street, NW, Suite 120 Washington, D.C. 20007 Facsimile: (202) 944-3306

sis ant Office ofthe Regional Counsel 

# 'APR r-1 

# 2014) Dated

6